In our latest blog Head of Employment Law, Katie Ash, goes through the eight key steps to lawfully recruiting someone into your business. It can be a costly mistake to ignore the rules and get this wrong.
1. Identifying the vacancy
Consider whether the job needs to be performed on a full-time basis or whether it is open to job-sharing, part-time working or homeworking and whether the appointment is to be made on an indefinite or a fixed-term basis.
You should be confident in explaining any requirement for a job to be performed on a full-time basis (as such a requirement may be challenged as being discriminatory by those who need to work flexibly or on a part-time basis because of childcare commitments).
2. Preparing a job description and person specification.
Before advertising the vacancy, the Equality and Human Rights Commission (EHRC) recommends drawing up a detailed written job description and person specification. This will help you focus on the skills and experience required and document those requirements (in case of any subsequent challenge).
When preparing the job description it is advisable to:
- use an appropriate job title;
- accurately describe the job;
- focus on outcomes; and
- avoid specifying unnecessary working patterns.
When preparing the person specification, the EHRC Code also recommends the following:
- Do not include irrelevant criteria.
- Criteria relating to skills or knowledge should not be unnecessarily restrictive by specifying particular qualifications to be necessary or desirable.
- As far as possible, use criteria that can be tested objectively.
- Except in specified circumstances, don’t ask questions about health or disability before the offer of a job is made or a person is placed in a pool of people to be offered a job.
- Including criteria that relate to health, physical fitness or disability, such as asking applicants to demonstrate a good sickness record, may amount to indirect discrimination against disabled people unless these criteria can be objectively justified by the requirement of the actual job in question.
- Including requirements that relate to physical attributes may discriminate not only against some disabled applicants, but also those with other protected characteristics, unless the criteria can be objectively justified.
3. Deciding whether an exemption, such as Occupational Requirements, applies to the vacancy.
While discrimination in employment is generally prohibited, in certain circumstances an employer may have a defence to an act of discrimination that is otherwise unlawful.
The Equality Act 2010 sets out a number of Occupational Requirement (OR) exceptions that employers might rely on when facing discrimination claims.
4. Advertising the vacancy: inviting applications (using either application forms or other means of applying) and dealing with speculative applications.
All forms of job advertisement, including emails, direct mail, signs in shop windows and on company notice boards, as well as advertising to the general public in newspapers, on the radio, TV and internet are covered by the Equality Act 2010.
The EHRC Code states that employers must not discriminate in their arrangements for advertising jobs or by not advertising a job as well as not discriminating through the actual content of the job advertisement.
The EHRC Code recommends adopting a "standardised process", whether through use of an application form or using CVs, in order to make an objective assessment of an applicant's ability, to ensure there is an equal playing field and to assist an employer in demonstrating that it has assessed applicants objectively.
Any questions on an application form about protected characteristics should include a clear explanation as to why this information is needed, and an assurance that it will be treated confidentially. Such questions should only be asked where they reflect occupational requirements for the post.
5.. Undertaking equal opportunities monitoring.
Employers are entitled (and in some circumstances required) to monitor the composition of those who apply to and of those who are working for them.
Equal opportunities monitoring forms should be separated from application forms prior to the shortlisting process so that this information has no influence on the process.
It is advisable to review each stage of the recruitment process, using the monitoring information received from the applicants for the job. The review should consider whether any stage of the selection process might have contributed to any significant disparities between the success rates for different groups of people sharing protected characteristics. If so, an employer should investigate further and take steps to remove any barriers.
6. Shortlisting and interviewing.
Once the application deadline has passed, the next step is to select a preferred candidate from the group of people who have applied. The selection process may involve a number of stages depending on the nature of the vacancy and the size of the business and the administrative resources available. Those stages could involve:
- Selection tests
- Assessment centres
Whichever selection process is decided upon, it’s important to ensure that the process is fair, consistent and results in the appointment of the best person for the job.
The EHRC Code recommends that, having secured a preferred candidate, it would be good practice for employers to offer feedback to unsuccessful shortlisted candidates if this is requested.
Feedback can be written or oral and should be provided in a sensitive manner, with any negative comments or criticisms relating directly to the applicant's failure to meet the requirements of the role or the person specification.
7. Making an offer of employment, subject to conditions where appropriate (and, where necessary, withdrawing the offer).
Once the successful candidate is selected, the next stage is to make an offer of employment to them. This should include the following:
- The job title of the job being offered, any particular features of the job such as it being for a fixed-term or a part-time position, and the starting salary.
- The terms of employment either as set out in the offer letter and/or in an enclosed contract and/or in an enclosed staff handbook.
- If there have been any discussions or negotiations about the job, in order to avoid any confusion, confirmation that the offer on the terms provided supersedes any previous discussions.
- Any conditions to which the offer is subject, for example, receipt of satisfactory references.
- Any time scale within which conditions need to be satisfied and the employee needs to confirm acceptance of the offer.
8. Inducting the new employee, starting with a probationary period where appropriate.
The following are likely to be dealt with as part of an employee's induction:
- Making sure there are copies of necessary paperwork on file (including a signed contract and signed acknowledgment of receipt of any staff handbook or policies and procedures).
- Health and safety training, including location of fire exits and alarms.
- Job specific training.
- An explanation of the probationary procedure (setting performance objectives and dates for progress meetings, where applicable).
- Ensuring the employee is either given or signed up for the employer's next session of equal opportunities training.
If you need any assistance with your recruitment or are fearful that you have gone through the process incorrectly please get in touch with our team.